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The current ‘ice’ epidemic has thrown the legal system into turmoil, with the public outraged that drug users are said to be using their addiction to escape convictions or secure lenient penalties.

Some have voiced their concern that if Australia’s ‘love affair’ with ice continues, more and more addicts will use their addiction to ‘exploit the law.’

Simply put, such assertions are misinformed and misleading.

In this blog, we attempt to set the record straight about using intoxication as a defence to criminal charges.

Intoxication and the Law

Many people incorrectly believe that intoxication can be used as a defence to any criminal offence.

Although it was previously the case that an ‘intoxication defence’ could be raised generally, the passage of the Criminal Legislation Further Amendment Act of 1995 changed the law so that intoxication can only be raised in very limited circumstance.

Since that amendment, evidence that a person was intoxicated can only be raised in cases of ‘specific intent’, and then only to show that the defendant could not have formed the intent necessary for that offence.

Specific intent offences are those which require the prosecution to prove beyond a reasonable doubt that the defendant actually intended to achieve a particular outcome by carrying out an act.

Murder is one example of a specific intent offence. For a person to be found guilty of murder, the prosecution must prove that they acted with the intention of actually killing another person or causing ‘grievous bodily harm.’

Another example is ‘wounding or grievous bodily harm with intent.’ This requires the prosecution to prove that the defendant acted with the intention, or foresight, of inflicting a wound or grievous bodily harm on another person.

Most other criminal offences, sometimes called ‘basic intent’ offences, will require the prosecution to prove that the defendant performed an illegal act, and that some form of ‘guilty mind’ was also present – such as recklessness or wilful blindness. An intention to cause a specific result is not necessary for such offences to be proven. Examples of basic intent offences include common assault, reckless wounding and drug possession or supply.

For ‘strict liability’ offences, the prosecution does not need to prove any specific state of mind at all – they just need to show that the defendant committed the unlawful act. Examples of strict liability offences include drink driving and driving whilst disqualified.

Evidence of a person’s intoxication cannot be raised as a defence to basic intent or strict liability offences.

Intoxication as a Defence?

In criminal law, if the defendant raises a defence (eg self defence) it is then up to the prosecution to prove beyond reasonable doubt that the defence is not valid.

So does this mean that you can be found ‘not guilty’ of a specific intent offence if the prosecution is unable to exclude the possibility that you were under the influence of drugs or alcohol at the time of the offence?

As discussed above, the defence can use evidence that a person was affected by drugs or alcohol to raise the possibility that they could not have formed the intention required to commit an offence of specific intent.

That much is made clear in section 428C(1) of the Crimes Act 1900 which says:

“Evidence that a person was intoxicated… at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent”.

What about ‘Dutch courage’?

But what about the situation where a person gets drunk or high in order to help them to commit an offence?

Section 428C(2) makes it clear that evidence of intoxication cannot be taken into account if the defendant:

(a) Had decided to commit the offence before becoming intoxicated, or

(b) Became intoxicated to strengthen his or her resolve to do the relevant conduct.

This effectively means that evidence of a person’s intoxication can only be raised used by the defence in very limited circumstances.

Not Guilty Due to Intoxication?

Significantly, even if a jury accepts that a person was so intoxicated by drugs or alcohol that they could not have formed the required intent, it does not necessarily mean that the person will escape punishment altogether..

If the jury believes that a defendant could not have formed the intent necessary for that offence (due to intoxication or otherwise), they may instead find him or her guilty of ‘recklessly causing grievous bodily harm or wounding‘, which is an offence of basic intent under section 35 which carries a maximum penalty of 10 years imprisonment.

Similarly, a person who is found ‘not guilty’ of murder on the basis that they could not have formed an intention to ‘kill’ or ‘cause grievous bodily harm’ may instead be found guilty of manslaughter.

Intoxication as an Aggravating Factor

It will be a matter for the jury to decide whether to not the defendant was so affected by drugs or alcohol that they could not have formed the requisite intention.

This means that in many cases, the mere fact that a person was highly-intoxicated will not mean that they are found ‘not guilty’ of a specific intent offence.

In that case, the defendant, Mr King, had smoked ice and consumed alcohol before kicking and hitting his partner, Jazmin-Jean Ajbschitz, to death in 2013. Despite his state of intoxication, the jury found him guilty of her murder and the judge sentenced him to 25 years in prison.

Mr King tried to appeal his sentence on the grounds that his intoxication meant that he could not have formed an intention to kill or cause grievous bodily harm to Ms Ajbschitz, but that argument was rejected on appeal – with the court finding that ‘knew that he had a drug addiction, and knew of the results which would inevitably flow from it.’

Rather than helping his case, the appeal judge agreed that Mr King’s intoxication was actually an ‘aggravating factor’ which made his offending more serious, because he was aware that the use of ice made him more violent and aggressive.

A Need for Change?

But there have indeed been cases where the erroneously-labelled ‘intoxication defence’ has led to a lesser conviction; for instance, for manslaughter rather than murder.

This has sparked outrage from victims’ families and the public generally, who argue that the law needs to change to address this apparent injustice and make defendants bear the consequences of their drug use.

And at first glance, those horrified by Australia’s increased dependence on ice may be forgiven for thinking that law reform is an easy solution.

But the fact of the matter is that intoxication can only be raised in extremely limited circumstances, and may even amount to an aggravating factor in certain situations.

‘Closing the legal loophole’ has the potential to cause injustice to those who genuinely could not have formed the intent required to commit certain serious offences, while at the same time undermining the judicial system’s faith in the jury’s ability to make decisions about factual situations

And the words of Chief Justice McClelland in the case of Bourke v R [2010] NSWCCA 22 confirm that intoxication is certainly not a sure-fire way to avoid heavy sentences under the law:

“Intoxication, whether it is brought about by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty, except where the intoxication is the result of an addiction, and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because the offence was committed whilst intoxicated.”